« Legal Realism Lives | Main | Justice Prevails »

June 25, 2007

Comments

All this is perfectly true & extremely important. Don't forget, though: even if the techniques had not been authorized for the military, the CIA itself was at Abu Ghraib. Charles Graner & co. kept "ghost prisoners" without serial numbers for the CIA, and saw the body of a prisoner (Manadel Jamadi) whom a CIA officer (Mark Swanner) had tortured to death. They believed that they were supposed to follow CIA agents' intructions about how to treat prisoners. They also followed instructions from civilian contract interrogators, who military police frequently mistook for CIA agents (since they also wore civilian clothes, wore beards, etc.)

The thing to realize about the migration of these techniques to Abu Ghraib, I think, is that there's not one silver bullet--there were several different, related pathways.

As I noted at A.L.'s (and Anderson's) place, I don't believe John Yoo when he says he warned them about not letting the military use the techniques - he has consistently said that he was only offering legal advice and that it wasn't his job to comment on the policy. Now all of a sudden we're supposed to believe he provided some sort of warning?

The other problem is that even if these techniques had been confined to the CIA, they still would have been illegal and would still constitute abuse. What Yoo was really warning about (assuming he actually did warn) is abuse of abuse.

It's disheartening how many legal memos we've yet to see, by the way:

1) We haven't seen the August 2002 OLC memo authorizing waterboarding, stress positions, etc. for the CIA (but apparently not mock burial--go us!)

2) We haven't seen the March 2003 OLC memo authorizing similar techniques for the military (in defiance of the UCMJ & army regs).

3) At some point, OLC and/or the Department of the Defense concluded that the Geneva conventions didn't apply to certain prisoners in Iraq. As far as I know the legal argument for this conclusion hasn't ever been made public.

At one point I assumed these memos would come out in the course of time just as the others did, either through a leak or through a Congressional subpoena. But apparently not.

(then there are the NSA legal justificiations, which we've also never seen)

Yet another reason why some sort of very thorough investigation of these abuses must be a priority for any Democratic presidential candidate.

Ugh, I don't know whether I believe Yoo or not. He hasn't been honest about his role or the effects of his actions. But I do believe that if you want the single lawyer most responsible for this, it's Addington, not Yoo.

Yoo is certainly eager to share his responsibility, which fits Ugh's "wonder if he's worried" suspicion. OTOH, his claims that he was never offering policy advice were always so unbelievable, I don't find his belated admission to be suspect on that score.

I personally tend to think that his reluctance, *if* it was real, had more to do with the well-founded suspicion that the torture techniques wouldn't stay under wraps if they got out beyond the CIA's dungeons.

Nuremberg set a valuable precedent: Superiors are liable, if they knew (and did nothing) or should have known. Given that Rummy didn't even do something quite some time after the abuses appeared in the media, he clearly falls under it (same for Bush, he even publicly boasted extrajudicial killings)).
Sending Miller to "Gitmoize" Abu Ghraib should be enough to get him (and Miller!).
Cheney could be more difficult but as long as Bush does not claim that Cheney tried to stop him (which would mean Bush shouldering all the blame), he would be one in-the-know doing nothing. I bet a lot of people would spill the beans on Cheney, if "persuaded" by a skilled prosecutor with threats of them being hold liable otherwise and with no pardon in sight from a friendly administration.

One can still hope but I expect that they will get all away unharmed (by legal means at least). My preferences in that case are clearly beyond the rules here.

But think about it this way, if even John Yoo thought things could get out of control... then sheesh!

Yoo: "I always thought that only the CIA should do this, but people at the White House and at DOD felt differently,"

As hilzoy notes, that does throw the whole "few bad apples" theory out the window. Now, if we can just see if "sexual humiliation" was on the list of approved techniques (likely), the whole Rumsfeld "My goodness, isn't this improper and I am feeling so untoward" reaction become manifest bullsh!t to any one outside of Bizarro World.

Since Hartmut brings up prosecution, I'll reprint my queries at the Volokh thread, which have gone ignored thus far:

(1) Leaving aside the immunity provisions of the MCA, could Cheney and Addington in theory be indicted for conspiracy to violate the War Crimes Act, even where they haven't themselves committed the illegal acts themselves?

(2) I'll ask this one by example, since I have a hard time framing it: say Addington, Flanigan, and Yoo were indicted on the conspiracy count I've imagined, and defended themselves by arguing they were just providing legal advice. Would it be possible to "pierce" that "veil" by showing that they were in fact arguing with the predetermined conclusion of evading the WCA, and that their arguments were deliberately slanted to that end? (The "no sincere lawyer would omit Youngstown" argument, if you will.)

Any musings on these issues will be appreciated. Of course, as I note, the MCA and DTA ostensibly immunize everyone from Bush and Cheney down to the actual torturers. Dunno how that would hold up in court.

Hm, you'd think I could've edited out that double "themselves" the 2d time around.

A honest judge would apply the Nuremberg principle that this kind of immunization is void because it violates a higher law (to which the US are even bound by treaty).
What the current set of SCOTUSsies would do, is something else [barf!]

Ugh, I don't know whether I believe Yoo or not. He hasn't been honest about his role or the effects of his actions. But I do believe that if you want the single lawyer most responsible for this, it's Addington, not Yoo.

No argument there. I'm reminded of an article (posted here some time ago, I think) where Addington was quoted as saying that they should use illegally obtained evidence to convict people in court (presumably terrorists), all without informing the defense lawyer (and presumably the prosecutor as well). I wonder if they've done that.

I imagine we will keep waiting for the conservative's revulsion that Bush et al. were so deeply involved in a torture policy. This is especially true for those conservatives who are sincerely opposed to torture, but have given Bush et al. a pass to date because they accepted the "few bad apples" dodge. The same people have justified support for this criminal regime on the premise that John Kerry or other Dems were such an unsatisfactory alternative. We have literally reached the point where such people who still stand by that logic can be fairly characterized as preferring a policy of torture rather than elect Democrats.

And then we have the current crop of GOP wanna bes telling us that they would redouble the same policies.

There is truly a culture war at work here.

Anderson:

1) The MCA didn't affect the torture statute, which explicitly provides for conspiracy liability.

2) Prosecutions under the War Crimes Act are tricky even without the MCA, because I think before Hamdan the non-applicability of Common Article III was low on the ludicrous scale as far as their various legal theories are concerned. The D.C. Circuit & 4 Supreme Court Justices agreed with it, including the Chief Justice (if you count his vote on Hamdan at the D.C. Circuit).

3) OLC's role makes any prosecution vastly more difficult. People tend to argue: (a) you can't charge Yoo et. al with a crime for providing legal advice; (b) no one else can be tried because the OLC & DOJ assured them that this was legal & they were entitled to rely on that.

This, of course, gives the OLC the power to immunize the whole executive branch from being prosecuted for war crimes. If that really is what the current system requires, we need a new system.

Anyone seen any commentary on this series on a right-wing blog?

Ah, didn't know that about the torture statute -- just what I come to ObWi for!

I take the point about OLC, but that's why I'm exploring the real nature of the memos. If the OLC memo wasn't a neutral proffer of advice, but was actually tailored to produce certain conclusions, then the authors of the memo and the policymakers who directed that the memo come out as it did could perhaps be held liable, even if the CIA torturers themselves could've relied on the memo. See Scott Horton:

Confronted with such claims, a truly independent prosecutor would have to consider the possibility that the authors of these memoranda counseled the use of lethal and unlawful techniques, and therefore face criminal culpability themselves. That, after all, is the teaching of United States v. Altstötter, the Nuremberg case brought against German Justice Department lawyers whose memoranda crafted the basis for implementation of the infamous “Night and Fog Decree.”

If the OLC memo wasn't a neutral proffer of advice, but was actually tailored to produce certain conclusions

Start with conclusion, reason backwards - that was Jack Balkin's, or one of the other poster's at his site (or maybe Dan Froomkin's) reaction upon seeing the Yoo/Bybee memo.

Per our recent back and forth at your site Anderson, CIA specifically asked DOJ what techniques were legal and, it appears from the WaPo series, added that their current techniques weren't producing useful intelligence (hint hint). Anyway, it's clear that this was the policy the Cheney and Addington clearly wanted, and Yoo went along.

Anyone seen any commentary on this series on a right-wing blog?

The American Mind:

For being the seat of power in the Western world Washington, D.C. is a company town. With all the liberals and Leftists infesting the place the city has a strong conservative temperment. Things have to be done in a certain way and process trumps results.

That’s the view you should take while reading the Washington Post series on Vice President Dick Cheney’s powerful role in the Bush administration. All the gripes lifelong bureaurcrats and wheeler-dealers come out: Cheney’s office didn’t talk to certain people; he went straight to the President; opponents were locked out of the process; etc.

[...]

What is completely missed is the fact al Qaeda hasn’t stuck the U.S. in over five years. Taxes have been cut helping improve economic growth. Now, could policy development have gone better? Were mistakes made? Absolutely. But when examining how Cheney has changed the role of the Vice President we need to at least acknowledge what has been accomplished.

Shorter Sean Hackbarth: "Sure a few (bad) eggs were broken in the process, but check out this kick ass omelette!"

@ the Corner, Mona Charen takes issue with the word 'cruelty':

The Post’s headline on its Cheney series this morning (in the print, not online edition) is stunning: “The Unseen Path to Cruelty.” I admit that I haven’t read the entire article (life is too busy and too short to spend valuable time reading 200,000 word Post articles) but I’ve read enough to understand that today’s installment concerns the treatment of detainees. “Cruelty?” That is much too freighted a word to appear in a news headline. Surely the editors of the Post realize that the question of how to treat enemy combatants is a complex policy question. If Cheney took the position that the executive has broad constitutional authority in this area, as the article suggests, it was not because he is a cruel man, but out of genuine conviction that this was the best way to protect the American people.

See, Mona has better things to do than actually read about what she's offering commentary on. Buying blood red Christian Dior pumps with the torture tax cut savings, for example.

Also, torture isn't cruel (nor apparently unusual) if done out of genuine good will. I'm sure that will be comforting to those 'unlawful detainees' who were waterboarded, sodomized, beaten and killed by US military and intelligence personnel.

Ugh --

I just looked at Google's blogsearch, and conservative comments are, shall we say, not leaping out at me. I wonder if this is going to end up as yet another Bizarro World thing ...

MB - thanks, nothing surprising there, I guess.

And Mona, the word to take issue in that headline is not "Cruelty" but "Unseen" - which should have been struck completely.

Dude, Obama sometimes doesn't get it even a little bit:

Throughout this administration, Vice President Cheney has consistently sought to operate in secrecy and thwart rules designed to ensure the public’s right to know how their business is being done. I believe strongly that democracy works best when it does its work in the daylight. In an Obama Administration, we will launch the most sweeping ethics reform in history so that we can restore an open, honest government that finally makes real progress on the challenges facing the American people
.

CIA specifically asked DOJ what techniques were legal and, it appears from the WaPo series, added that their current techniques weren't producing useful intelligence (hint hint).

Suskind's last book shows just how diligently the CIA even tried "current techniques." I am becoming curious just how much humint they had invested in interrogation techniques. They seem to have acted like a bunch of amateurs; cf. what the CIA fellow is said to have told al-Libi when he was bundled off to Egypt's dungeons.

"Dude, Obama sometimes doesn't get it even a little bit"

I don't get it - am I reading too few right-wing blogs these days to be up on the latest snark?

Rilkefan, I think maybe Katherine is suggesting that a lack of openness is not the most egregious thing displayed by the WaPo series on Cheney. At least, that's what I thought she meant.

rilkefan--that was completely serious.

Lobbyist reform is great, but that's not what Cheney's abuses are really about. If Obama is planning to include an expansion of FOIA & a reform of the classification laws as part of his ethics reforms, great. But I doubt it, and I am very concerned that none of the democratic Presidential candidates are going to make it any sort of priority to actually investigate these sorts of abuses (let alone prosecution--which may not be possible but investigation IS and if a Democratic president doesn't do it in 2009 it will never happen, ever) & pass laws prevent them from recurring.

They all say they'll close Guantanamo, restore habeas--I commend them for it. It's necessary. But I think those are positions arrived at for the sake of primary voters & European allies, not a reflection of any kind of serious commitment on these issues. Which is probably as good as is reasonable to expect from a presidential candidate, but the Democrats allowed some of these things to happen--allowed the MCA to pass w/o even seriously considering a filibuster, etc.--based on a promise to fix them if & when they got into power. I have no faith that they will do that.

Anderson, lack of openness is a huge part of the problem w/ Cheney, but it's not just a question of him being personally corrupt in a way that a standard ethics reform bill would address. The stuff about earmarks, independent ethics commissions, private trips from lobbyists, & disclosure of what lobbyists you meet with is all great, but it has precious little to do with the OLC torture memos. If he's going to do something about expanding FOIA/shrinking state secrets privilege/taking classification power out of the sole hands of the executive, then the statement might be adequate.

To be fair to Obama, he was presumably responding to the general "I'm actually in the legislative" branch stuff, not this Post story. But even that concerned national security classification; Obama's response does not.

Is any of the WaPo series in the print version of the paper?

Now, could policy development have gone better? Were mistakes made? Absolutely.

That reminds me: where is Don Rumsfeld these days?

My unified theory of the Bush Administration was basically that Rumsfeld and Cheney were using their behind-the-scenes powers to govern as they would have liked to do, but had been prevented from doing, more openly. As the catastrophe in Iraq became more clear, Rumsfeld's bureacratic power waned, but Cheney was still a force to be reckoned with, able to force through the two men's vision.

Is any of the WaPo series in the print version of the paper?

Front page today.

Katherine, I don't think the Dems want to even start the discussion. Maybe they're afraid of where it would lead. Frankly, I am too. I'm not sure there are very many people as outraged as us about the torture issue. Otherwise, Taguba's reports would have been taken more seriously. And whatever happened to the second set of photos that the admin stalled to release? Honestly, for many reasons, I don't think there's much of honor left in this country. Maybe I was foolish to think there ever was.

We won't know how the public would react to what has happened until the public knows what happened, which won't ever happen if the Democrats don't make it a priority to find out. It seems pretty circular to use the Democrats' inaction as evidence that the public doesn't care and therefore the Democrats really can't act.

I'm not claiming that the silent majority is where I am on this issue. For the most part it's not a high priority. I claim that (1) it's a high priority for a higher % of the electorate than Congress; (2) if the Democrats are smart about it, they can do the right thing & do no worse than break even politically.

And Obama talks and talks and talks about being the kind of candidate I hope will run, but in practice, he's just not. He's fine, I far prefer him to Clinton let alone the GOP candidates, may well vote for him, but he shouldn't go around raising people's hopes if he doesn't intend to follow through.

but he shouldn't go around raising people's hopes if he doesn't intend to follow through

Isn't that just what politicians do for a living?

But yeah, where's the leadership? Where's Senator Obama demanding hearings? He and Hillary are too busy being candidates to do anything useful, it seems -- which I'm sure suits them just fine.

I have no issue with his Congressional performance; that's really more on the committee chairmen & the caucus leaders. And it's quite early on this; the important thing is what he does in 2009 if he wins. And this statement, in itself, is not a big deal at all. I've just got years of accumulated bitterness, & I'm looking for someone to be as good on this as Dean was on Iraq, and it's not going to happen because Russ Feingold decided not to run. But Edwards and Obama show enough promise that i keep hoping.

On the bright side, every single major candidate is much better on this issue than anyone but Dean was on Iraq in 2004. Arguably, two candidates who are pretty good & between them have maybe a 50% shot at the nomination are better than one person who fulfills all my hopes & doesn't have a chance. But I'm fresh out of patience.

In my dreams the American public wakes up and says of Cheney's executive power dreams "no the constitution does not f*cking grant the president the power to override dutifully enacted statutes in times of war, and if SCOTUS disagrees with us then we will f*cking amend the constitution to turn the president into little more than Bartleby the Scrivener."

Of course, that would require the public to (a) realize what Cheney was doing; (b) care; (c) know what SCOTUS is; and (d) know who Bartleby is. In light of that, I also want a pony.

Put me down for the Pony Party.

And while I take Katherine's point about committees, I don't think that senators should be allowed to use that as a dodge for washing their hands of important issues.

I'm not asking for a f***ing pony. It would be entirely possible, both logistically & politically, for a democratic candidate to satisfy me on these issues. Public & press opinion HAS been moderately aroused on these issues, no thanks to any leadership on their part. They have, to their credit, followed part way. But that's all they've done.

I guess I didn't have any patience when the torture question surfaced and that's why I don't think anything's going to happen.
If the people wanted to be outraged they had ample time and evidence to be so. Instead, they buy into the he said, she said garbage. (Is it 'standing' or is it 'torture'?) They did it with Iraq, Katrina, everything. The only reason Bush's ratings are so bad now is that people bought a bill of goods about how quick the war would be, only oops, not so much. That lost whatever independents were willing to go along. The rest he lost because he's not willing to 'rendition' millions back to Mexico.
The Dems go along because they want the power the Repubs have. If they get it, they'll keep it just like everybody else does.

Tomorrow, June 26th, is the tenth observance of the date that the United Nations has marked as the International Day in Support of Survivors and Victims of Torture.

It has been clear for some time that the the United States government is engaging systematically in the use of torture and inhuman treatment as part of the "war on terror." Each new revelation makes it harder to deny.

One of the first orders of business is to reverse last fall's Military Commissions Act that retroactively "legalized" torture. There is a bill to do so, S.576, Dodd's 'Restoring the Constitution Act 2007'. Please ask your senator to sign on.

Last week, Sen. Sherrod Brown, a cosponsor of S.576, said he regretted his vote in favor of the Military Commissions Act last fall:

"It was a bad vote," Brown said during an interview on progressive radio station Air America ..."I shouldn't have." Brown, an Ohio Democrat, was one of 34 House Dems last year who supported the measure. He says now he cast the vote because of political pressures. "It was the heat of the campaign, and I made a mistake," he said.

Undo this "mistake", shake off cowardice, and maybe someday we can be proud of this country again.

Last week, Sen. Sherrod Brown, a cosponsor of S.576, said he regretted his vote in favor of the Military Commissions Act last fall

Oh, how sweet. And now that there's no way to get a supermajority on it, he wants to be a "sponsor" of a feelgood bill with approximately the same projected life expectancy as a snowball in Hell.

Speaking of which, it would be entertaining to figure out just where in Hell Dante would locate the Sherrod Browns.

I should add that a broad coalition of human rights groups and defenders of the constitution are encouraging constituents to make tomorrow meaningful by calling your Senators and members of Congress to support the repeal of the MCA and the restoration of habeas rights.

Until the the MCA is repealed, it will be all but impossible to put Cheney in the dock for his role in establishing our current policy of torture.

I should add that a broad coalition of human rights groups and defenders of the constitution are encouraging constituents to make tomorrow meaningful by calling your Senators and members of Congress to support the repeal of the MCA and the restoration of habeas rights.

Until the the MCA is repealed, it will be all but impossible to put Cheney in the dock for his role in establishing our current policy of torture.

Anderson, I'm surprised and somewhat horrified at your response. Dodd's bill is the only vehicle in Congress now to undo the MCA. It has twelve co-sponsors. It's not as likely to pass as bills that "only" restore habeas, but, as I said, is absolutely essential to restoring U.S. implementation of the international Convention Against Torture to which we're a signatory.

The attitude that it's meaningless, even wrong, to work for and support legislation that might get fewer than sixty votes in the Senate lets every Senator off the hook.

We need to push for what is right in order to put people on the spot. If John Warner, Mr. Moderate and oh-so-concerned about the effect of a policy of torture on the armed services, won't support repeal of the MCA, then he's for a policy of torture. That needs to be made absolutely clear, and I have a hard time seeing what beside Dodd's bill could do it.

Anderson, I sort of agree with you about Brown, but it's very important to pass full MCA repeal even if it gets vetoed. There's an outside shot at attaching it to something must-pass if the votes are there, and it's important to get the votes together now for full repeal under a new pres.

Cosponsors are Bingaman, Brown, Harkin, Lautenberg, Menendez, Sanders, Boxer, Feingold, Kennedy, Leahy, Mikulski & Wyden.

Dodd is the original sponsor.

Lautenberg & Menendez had originally voted for the MCA. And Wyden had at one point voted for the Graham amendment, though that was more a question of getting snowed by Graham than anything else. Add in Brown, and it would appear that targetted lobbying of specific Senators has some effect.

Nell, the Dems' defection on the MCA, rather than a filibuster, made me swear never to give another dime to the Democratic Party as such. It was a betrayal of whatever the f--- the Dems are supposed to stand for. I wouldn't cross the street to give Brown or the other defecting senators a glass of water if they were dying of thirst.

So maybe that explains my reaction.

If Katherine says there's some hope for the bill beyond putting a band-aid on Brown's conscience, then good, I hope it succeeds. If there's some way I can target a donation specifically to lobbying on this issue, please share it.

Lautenberg & Menendez had originally voted for the MCA

Not that I think my "targetted lobbying" was the crucial element, but when they voted for the MCA I not only told them of my displeasure, I stopped being a Menendez campaign worker. I don't think it would take much of that kind of thing to get the point across. I'm still really ticked at them both, but at least they seem to have grasped "the sense of NJ" enough to sign on to the repeal in the first round.

jesus, this just seems like checkmate to me, particularly in combination with the taguba new yorker article. it's clear that rumsfeld lied to congress.

Anderson, I had to be talked by my party chair into not just walking out of headquarters and never coming back on the day the MCA passed. She wouldn't have put in the effort except that I was the main organizer of the Webb fundraiser that was then two days away.

In agreeing to keep going, I told myself that Webb was part of the solution to the cowardice that made Debbie Stabenow and Menendez and all the other Democrats who should have known better vote for that disgusting, criminal "law." I expect him to vote for the Dodd bill if it gets to the floor. (But I'm taking no chances, and his office is getting a call and a letter from me later today on the subject.)

To have the best shot at producing targeted lobbying on this issue, though, your contributions should be directed at Human Rights First, the Center for Constitutional Rights, the ACLU, or their worthy ilk.

These kids today! They bring a tear to my eye:

President Bush was presented with a letter Monday signed by 50 high school seniors in the Presidential Scholars program urging a halt to "violations of the human rights" of terror suspects held by the United States. ... "We do not want America to represent torture. We urge you to do all in your power to stop violations of the human rights of detainees, to cease illegal renditions, and to apply the Geneva Convention to all detainees, including those designated enemy combatants," the letter said.

The designation as a Presidential Scholar is one of the nation's highest honors for graduating high school students. Each year the program selects one male and one female student from each state, the District of Columbia, Puerto Rico, Americans living abroad, 15 at-large students, and up to 20 students in the arts on the basis of outstanding scholarship, service, leadership and creativity.

Now that's the way to observe the International Day of Support for Survivors and Victims of Torture!

[quote]I imagine we will keep waiting for the conservative's revulsion that Bush et al. were so deeply involved in a torture policy.[/quote]
Sorry, there's a Mexican invasion to fight.

The comments to this entry are closed.

Blog powered by Typepad